Case Note & Summary
The appeal arises from a judgment and decree dated 28.02.2018 passed by the Fast Track Mahila Court, Dindigul, in O.S.No.65 of 2009, a suit for partition filed by the plaintiff (1st respondent) seeking a 1/2 share in the suit property. The suit property, consisting of two items, originally belonged to one Seenivasan as his self-acquired properties. He purchased the first item under a registered sale deed dated 01.05.1961 and put up a building. The second item was acquired under a registered settlement deed dated 30.04.1990. Seenivasan died intestate on 15.06.2005, leaving behind his wife Janaki (2nd defendant, since deceased) and two daughters: the plaintiff (Kalavathi) and the 1st defendant (Chithra, the appellant). The plaintiff claimed that she and the 1st defendant are each entitled to a 1/2 share in the suit property. The 1st defendant contested the suit, claiming that she had been in possession of a portion of the property and that the plaintiff, who is a US citizen, had no right to partition. The trial court decreed the suit in favor of the plaintiff, granting a preliminary decree for partition of the plaintiff's 1/2 share. The 1st defendant appealed. The High Court, after hearing arguments, held that the trial court's decree was correct in principle but needed modification to protect the 1st defendant's right of residence. The court noted that the 1st defendant was in possession of a portion of the property and that a co-owner in possession cannot be ousted without a partition by metes and bounds. The court modified the decree to include a direction that the 1st defendant shall be entitled to reside in the portion of the property in her possession until the final decree is passed, and that the plaintiff shall not be entitled to evict her without due process of law. The appeal was partly allowed, with no order as to costs.
Headnote
A) Civil Procedure - Partition Suit - Preliminary Decree - Right of Residence - The trial court granted a preliminary decree for partition in favor of the plaintiff for 1/2 share in the suit property, but the appellate court modified the decree to include a right of residence for the defendant co-owner who was in possession of a portion of the property. The court held that a co-owner in possession cannot be ousted without partition by metes and bounds, and that the right of residence under Section 44 of the Transfer of Property Act, 1882 must be protected. (Paras 1-33) B) Property Law - Co-ownership - Right of Residence - Section 44 Transfer of Property Act, 1882 - The court held that a co-owner who is in possession of a part of the property has a right to continue in possession until a partition by metes and bounds is effected, and that the trial court's decree for partition without providing for the defendant's right of residence was erroneous. (Paras 20-30) C) Civil Procedure - Appeal - Modification of Decree - Order XLI Rule 1 & 2 CPC - The appellate court, while hearing an appeal against a preliminary decree, modified the decree to include a direction that the defendant shall be entitled to reside in the portion of the property in her possession until the final decree is passed, and that the plaintiff shall not be entitled to evict her without due process of law. (Paras 31-33)
Issue of Consideration
Whether the trial court was correct in granting a preliminary decree for partition without considering the right of residence of the defendant co-owner, and whether the plaintiff is entitled to a 1/2 share in the suit property.
Final Decision
The appeal is partly allowed. The judgment and decree dated 28.02.2018 passed in O.S.No.65 of 2009 by the Fast Track Mahila Court, Dindigul, is modified. The preliminary decree for partition in favor of the plaintiff for 1/2 share is upheld, but it is directed that the 1st defendant shall be entitled to reside in the portion of the suit property in her possession until the final decree is passed, and the plaintiff shall not be entitled to evict her without due process of law. No order as to costs.
Law Points
- Partition suit
- co-owner's right of residence
- preliminary decree
- final decree
- Section 44 Transfer of Property Act
- 1882
- Order XLI Rule 1 & 2 CPC
- Section 96 CPC
- right of residence
- ouster of co-owner
